August 13, 2010

Could The California Gay Marriage Verdict Stand Unchallenged?

From the moment nearly 15 months ago that two master legal tacticians, David Boies and Theodore Olson, launched the case of Perry v. Schwarzenegger, it was almost universally expected that it would become a historic Supreme Court test of gay marriage and the Constitution. Now, perhaps for the first time, it seems realistic to suggest that this particular high-stakes battle may never get much beyond California, especially in terms of its impact on the Constitution.

That prospect came into view Thursday as U.S. District Judge Vaughn R. Walker suggested that the appeal of his sweeping ruling against California’s Proposition 8 ban on same-sex marriage may end on what everyone but lawyers would consider a mere legal technicality. It might end, in other words, because no one with a right to do so would opt to take the case beyond Judge Walker’s San Francisco courtroom.

Make no mistake about it: there will be energetic efforts to keep the case going, initially through the Ninth Circuit Court (also based in San Francisco) and, perhaps, through the Supreme Court in Washington. But the fight, perhaps at every level, could focus on a concept that is anything but familiar to the average American. The legal label for this concept tells nothing about what it is, although hinting that it finds its origin in the Constitution: “Article III standing.” For the supporters of Proposition 8, “Article III standing” is probably not a legal arena where they want to be tested; the current Supreme Court’s majority does not have an expansive view of who can qualify for “standing.”

If the case does falter because of a lack of “standing,” Judge Walker’s 136-page opinion on August 4 against Proposition 8 would stand as a precedent, but one that represented the judgment of a single federal jurist, without the enlarging endorsement of a federal appeals court or of the Supreme Court. District Court rulings, even those that are widely admired within the legal community, do not have the compelling force behind them that a higher court’s decisions do.

It seems bizarre that such a major ruling could go unchallenged merely because, despite the many gay marriage opponents desperate to overturn the decision, nobody has legal standing to challenge it. On the other hand, it would be sort of fitting. The fundamental issue with gay marriage is that opponents have never been able to adequately explain who is hurt by letting gays marry. The concept of "standing" is about finding a person who is hurt by a ruling. There are no such people. Hence the basic justice.